Politics

Routine searches, no warrant required

In a report required as part of the renewal of the Patriot Act, the Justice Department said Friday that the FBI secretly sought information on 3,501 U.S. citizens and legal residents last year. The report covers some but not all National Security Letters, which let the government obtain records without a judge’s approval or a subpoena.

3,500 is fewer people than had been feared, although the report doesn’t count “requests for subscriber information”, so the true number is substantially higher. But I continue to be mystified why we would grant our government permission to spy on whomever it wants whenever it wants. It’s not just that it invites abuse and is inimical to liberty. If there’s not enough substantiation to get a warrant or a subpoena — which aren’t very hard to get in the first place — that’s reasonably good evidence that the surveillance is unwarranted.

Further, if we know enough about a suspect to demand their records, then we know enough about them to investigate them through other, less violative means. This isn’t like warrantless wiretaps, which in the Hollywood scenarios favored by supporters offer at least the possibility of preventing an imminent attack. As the Washington Post explained in November, NSLs are investigative tools, not emergency interventions.

A national security letter cannot be used to authorize eavesdropping or to read the contents of e-mail. But it does permit investigators to trace revealing paths through the private affairs of a modern digital citizen. The records it yields describe where a person makes and spends money, with whom he lives and lived before, how much he gambles, what he buys online, what he pawns and borrows, where he travels, how he invests, what he searches for and reads on the Web, and who telephones or e-mails him at home and at work.

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Since the Patriot Act, the FBI has dispersed the authority to sign national security letters to more than five dozen supervisors — the special agents in charge of field offices, the deputies in New York, Los Angeles and Washington, and a few senior headquarters officials. FBI rules established after the Patriot Act allow the letters to be issued long before a case is judged substantial enough for a “full field investigation.” Agents commonly use the letters now in “preliminary investigations” and in the “threat assessments” that precede a decision whether to launch an investigation.

In other words, agents use warrantless snooping to decide if they’re going to launch a full-scale investigation. Warrantless searches have become a first and routine step, instead of a narrow and extreme exception to the law.